OAG 94-26

April 20, 1994

Norman Nezelkewicz

Director of Transportation

Kentuckiana Regional Planning and Development Agency

11520 Commonwealth Drive

Louisville, Kentucky 40299

Dear Mr. Nezelkewicz :

We have been asked to provide an opinion stating whether it is
permissible for the Kentuckiana Regional Planning and Development
Agency to conduct a highway use survey by stopping vehicles and
asking the drivers to answer questions.

We conclude that the planned survey is illegal. Our conclusion
reaffirms the position taken by the Indiana Department of
Transportation. That agency's legal staff concluded that the
project in question violates rights protected by the U.S.
Constitution, which is of course equally applicable to all
states. A copy of the Indiana legal opinion is attached.

The fundamental law at issue is the fourth amendment to the
Constitution, which states, "The right of the people to be
secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated . . .
." The stopping of a vehicle under color of government
authority has always been considered a seizure. "There can
be no question that the stopping of a vehicle and the detention
of its occupants constitutes a 'seizure' within the meaning of
the Fourth Amendment, even though the purpose of the stop is
limited and the resulting detention quite brief." Delaware
v. Prouse, 440 U.S. 648, 653, 59 L.Ed.2d 660, 99 S.Ct. 1391
(1979). Therefore the legal issue invariably is whether a
particular seizure was unreasonable.

The Prouse case holds that the general purpose of the
fourth amendment is to impose a standard of reasonableness on the
exercise of discretion by government officers. "Thus, the
permissibility of a particular law enforcement practice is judged
by balancing its intrusion on the individual's Fourth Amendment
interests against its promotion of legitimate governmental
interests." Id. at 655. The Court ruled that
stopping a vehicle to check the driver's license and vehicle
registration is illegal "except in those situations in which
there is at least articulable and reasonable suspicion that a
motorist is unlicensed or that an automobile is not
registered." Id. at 663. The Court summarized its
holding by saying that "persons in automobiles on public
roadways may not for that reason alone have their travel and
privacy interfered with at the unbridled discretion of police
officers." Id.

It is our opinion that the governmental units involved in the
proposed survey cannot show a legitimate governmental interest
sufficient to overcome motorists' legitimate expectation of
privacy in their vehicles. As the Court stated in Prouse,

An individual operating or traveling in an automobile does
not lose all reasonable expectation of privacy simply because
the automobile and its use are subject to government
regulation. Automobile travel is a basic, pervasive, and
often necessary mode of transportation to and from one's
home, workplace, and leisure activities. Many people spend
more hours each day traveling in cars than walking on the
streets. Undoubtedly, many find a greater sense of security
and privacy in traveling in an automobile than they do in
exposing themselves by pedestrian or other modes of travel.
Were the individual subject to unfettered governmental
intrusion every time he entered an automobile, the security
guaranteed by the Fourth Amendment would be seriously
circumscribed. [P]eople are not shorn of all Fourth Amendment
protection when they step from their homes onto the public
sidewalks. Nor are they shorn of those interests when they
step from the sidewalks into their automobiles.

440 U.S. at 661-62.

We agree with the Indiana counsel's statement that
"potential also exists for civil liability if accidents
should result from diverting the flow of traffic."
Additionally, because protected constitutional rights are
involved, liability could be asserted under 42 U.S.C. � 1983. It
is our understanding that the information sought in the survey
could be obtained through less obtrusive means. Therefore we fail
to see any governmental interest that outweighs the motorists'
reasonable expectation of privacy. Because the balancing of
interests clearly favors the constitutional right to privacy, we
conclude that the proposed survey may not be undertaken by
stopping motorists on the highway.